FOCUS | DoJ: Stealing Personal Medical Data OK

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FOCUS | DoJ: Stealing Personal Medical Data OK

Wed, 08 Jun 2005 11:35:12 -0700

 

 

FOCUS | DoJ: Stealing Personal Medical Data OK

http://www.truthout.org/docs_2005/060805X.shtml

 

 

US Limits Prosecutions under Privacy Law

The Associated Press

 

Tuesday 07 June 2005

 

Washington - The Justice Department has decided that most health

care employees can't be prosecuted for stealing personal data under a

privacy law intended to protect medical information.

 

The ruling could jeopardize the lone conviction obtained under

medical privacy rules that took effect in 2003 and could stop federal

prosecutors from pursuing some of the more than 13,000 complaints that

have been filed alleging violations of those rules.

 

The health care industry has long sought to limit the effect of

the rules and the 1996 privacy law, the Health Insurance Portability

and Accountability Act, on which they are based, although officials at

several industry trade groups said Tuesday they did not lobby the

Justice Department on this topic.

 

Hospitals, insurers, doctors and other health care providers that

bill for their services are subject to criminal prosecution under the

law, according to the June 1 memo signed by Steven G. Bradbury, the

Justice lawyer who heads the office of legal counsel.

 

But a hospital clerk, for example, and other employees cannot face

criminal penalties because the law doesn't apply to them, Bradbury wrote.

 

The memo was the subject of extensive internal debate within the

Bush administration, with at least one federal prosecutor voicing

opposition to its conclusion.

 

" As prosecutors in the field, we're disappointed with the

opinion, " said Emily Langlie, spokeswoman for US Attorney John McKay

in Seattle.

 

Last August, McKay's office obtained a guilty plea from a

technician at the Seattle Cancer Care Alliance. Richard W. Gibson was

sentenced to 16 months in prison after admitting that he stole the

identity of a cancer patient and used the information to obtain credit

cards in the patient's name. Gibson bought $9,100 worth of jewelry,

video games and a barbecue grill using the cards.

 

" This case should serve as a reminder that misuse of patient

information may result in criminal prosecution, " McKay said at the time.

 

Langlie said prosecutors are waiting to see if Gibson attempts to

withdraw his plea or a federal judge intervenes. She said he could be

prosecuted for identity theft.

 

Peter Swire, who was the Clinton administration's top privacy law

expert, called the opinion bad law and public policy.

 

" It looks like they decided on the outcome for political reasons,

namely the health care industry's desire to get out from criminal

prosecution, " said Swire, a law professor at Ohio State University.

 

Officials at the Justice and Health and Human Services departments

declined to comment Tuesday. The existence of the memo was first

reported by The New York Times.

 

Robert Gellman, a consultant on privacy and information policy,

said the memo leaves the bulk of the health care work force outside

that interpretation.

 

" In terms of the misuse of records, it's not health care

professionals who are the likely problems, " Gellman said. " This didn't

seem to be such a big issue just a few months ago, when they had the

prosecution. I find it puzzling. "

 

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